Licence Appeal Tribunal File Number: 22-000289/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Matthew Messina
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Olga Zemlinsky, Counsel
HEARD: By way of written submissions
OVERVIEW
1Matthew Messina (the “applicant”) was involved in an automobile accident on October 8, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Unica Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
The disputed treatment plans (the “OCF-18s”) for psychological services are not deemed reasonable and necessary per section 38(11) of the Schedule
2I find the applicant is not entitled to the relief he seeks under section 38(11) of the Schedule.
3Section 38(11) of the Schedule obligates an insurer to pay for all goods, services, assessments, and examinations described in an OCF-18 if it fails to give a notice in accordance with section 38(8) of the Schedule. For section 38(11) to apply, the applicant must prove the notice provided by the respondent is not compliant with section 38(8), and that the benefit was incurred during the period of non-compliance.
4The applicant argues, in his reply submissions, that the respondent failed to provide a medical reason for its denials in accordance with section 38(8) of the Schedule. The respondent’s sur-reply argues that the denials of these OCF-18s—all of which were partially approved—were not for medical reasons, and that it provided “all of the other reasons” as required by section 38(8) of the Schedule.
5I find the respondent’s denials of the psychological OCF-18s at issue comply with section 38(8) of the Schedule. I am persuaded by the respondent’s submissions, which point to Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. In Varriano, the court contemplated whether an insurer always has to provide a medical reason when denying benefits under the Schedule. The court determined an insurer relying only on non-medical grounds to deny benefits is required only to provide the insured with the non-medical reason(s) for its decision. Although I accept this finding was made in the context of section 37(4) of the Schedule, I find the principle here is broadly applicable to this case, and specifically relevant to section 38(8), which, like section 37(4), sets out an expectation for the insurer to provide “… the medical and any other reasons” for its decision.
6In this case, the respondent produced denial letters for each of the OCF-18s at issue. I find these notices were sufficiently clear in their reasons for denial (i.e., they allow an unsophisticated person to understand them and make an informed decision in response). For three of the OCF-18s, the respondent reasoned that the proposed discharge reports were a duplication of services provided by the reassessment reports, and were therefore not reasonable and necessary. The respondent’s reasons for denying the remaining psychological OCF-18 were owing to excessive costs for proposed products and a form completion fee that it believed to be unreasonable and unnecessary.
7In conclusion, while I accept the respondent did not provide a medical reason for partially denying the OCF-18s at issue, I find it was not necessary for the respondent to do so. The respondent otherwise complied with section 38(8) of the Schedule by providing all the other reasons for denial, and I therefore disagree that section 38(11) of the Schedule should apply as argued by the applicant.
ISSUES
8The issues in dispute are:
i. Is the applicant entitled to psychological services, proposed by Elite Specialist Group as follows:
a. $448.83 ($4,239.54 less $3,790.71 approved) in a treatment plan (the “OCF-18”) submitted on December 10, 2019, and denied on March 4, 2020;
b. $448.83 ($4,239.54 less $3,790.71 approved) in an OCF-18 submitted on July 22, 2020, and denied on July 24, 2020;
c. $575.50 ($708.50 less $133.00 approved) in an OCF-18 submitted on July 22, 2020, and denied on July 24, 2020; and
d. $448.83 ($4,239.54 less $3,790.71 approved) in an OCF-18 submitted on January 11, 2021, and denied on January 12, 2021?
ii. Is the applicant entitled to physiotherapy services, proposed by We Fix U Physiotherapy as follows:
a. $1,796.00 in an OCF-18 submitted on December 29, 2020, and denied on January 12, 2021; and
b. $1,796.00 in an OCF-18 submitted on August 19, 2021, and denied on August 26, 2021?
iii. Is the applicant entitled to massage and chiropractic services in the amount of $1,770.00, proposed by Clarington Chiropractic in an OCF-18 submitted on February 10, 2021, and denied on February 16, 2021?
iv. Is the applicant entitled to massage and chiropractic services submitted on a claim form (the “OCF-6”) dated November 5, 2022, and denied on November 29, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
9The applicant is entitled to payment for, and interest on, the three OCF-18s for psychological treatment submitted in December 2019, July 2020, and January 2021, each in the amount of $448.83. The applicant is not entitled to any of the remaining OCF-18s in dispute, nor the OCF-6.
ANALYSIS
10Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
OCF-18s for psychological services and assessment
OCF-18s submitted in December 2019, July 2020, and January 2021, each for $448.83
11I find the discharge report proposed in each of these OCF-18s to be reasonable and necessary.
12In my view, this dispute narrowly pertains only to whether there is overlap between a discharge report and a formal reassessment (i.e., whether it is reasonable to charge a fee for a discharge report in addition to a formal reassessment). Each of the OCF-18s in dispute list both the formal reassessment and the discharge report as separate items to be completed and billed individually.
13The applicant’s submissions say a discharge report, and the formal reassessment conducted at the end of treatment, are distinct from one another and do not overlap. The applicant goes on to explain that a discharge report is reasonable and necessary because it communicates findings and recommends next steps for treatment, whereas the reassessment measures progress (i.e., the applicant’s response to treatment already completed). The applicant adds that the reassessment is used to prepare the discharge report, and points to a psychological assessment and progress reports—prepared by the same psychologist (Dr. Andrew Shaul) who completed the disputed OCF-18s—as examples that make this distinction.
14The respondent’s submissions say the OCF-18s do not provide an adequate explanation as to why six hours is necessary to complete a reassessment and a discharge report. The respondent argues that the formal reassessment appears to overlap with the discharge report, and that no explanation was provided as to why the approved three hours was not sufficient to complete both items.
15I agree with the applicant. Each of these OCF-18s propose a formal reassessment and a discharge report as separate items, and I do not see any overlap here as claimed by the respondent. Using Dr. Shaul’s January 2019 assessment report as a proxy, I find the reassessment would be more likely than not to include psychometric testing, a file review, and a clinical interview. All this information would then need to be analyzed and documented in a report with findings and recommendations. I disagree that the formal reassessment and discharge report are billed using hours as a measure. Rather, the measure code for these items on the disputed OCF-18s is “PR,” which is consistent with a flat rate. I accept $448.83 as a reasonable fee to perform the discharge report.
OCF-18 submitted in July 2020 for $575.50
16I find the applicant is not entitled to the balance of this OCF-18.
17The applicant submits this OCF-18 is reasonable and necessary because Dr. Challis (psychologist) concluded, in his Insurer’s Examination report (the ”IE”) of November 19, 2020, that the applicant suffers from accident-related psychological injuries that require ongoing treatment and continuously prevent him from working.
18The respondent’s submissions say the $575.50 disputed on the OCF-18 (submitted July 22, 2020) is for four meditation and relaxation compact discs (proposed at $458.50 plus $50 for delivery) as well as a $200.00 fee for completing the OCF-18. The respondent explains it approved $133.00 for the compact discs because it priced similar products online at an average of $25.00 per CD, and that it denied the $200.00 form completion fee because the compact discs could have been included on the OCF-18 for psychotherapy services that was completed by the same treatment provider that same day.
19I agree with the respondent. While I accept that Dr. Challis recommended ongoing treatment, this does not establish the reasonableness of the proposed treatment costs, and the applicant did not point me to evidence that convinces me the proposed compact discs are reasonably priced. Rather, I am persuaded by the respondent’s evidence, which establishes—as per the examples it provided with the denial notice—that the costs of the compact discs proposed in the OCF-18 are excessive. I have no reason to believe that the compact discs researched by the respondent cannot reasonably achieve the OCF-18’s goal of providing methods of relaxation for pain management, stress reduction, improving sleep, and to achieve and maintain an overall healthy and balanced emotional state.
20Turning then to the $200 form completion fee, I find this is an unreasonable cost. The applicant’s submissions did not point to evidence that demonstrated why an OCF-18 for compact discs had to be completed separately from the OCF-18 prepared for psychological services by the same treatment provider on the same day. In my view, this is an unnecessary fee that could have easily been avoided by integrating both OCF-18s.
21In conclusion, I am not convinced this OCF-18 is reasonable and necessary.
OCF-18s for services related to physical therapies (i.e., physiotherapy, chiropractic services, and massage therapy)
22I find these OCF-18s are not reasonable or necessary.
23The applicant explains that the goals of these OCF-18s are to reduce pain, increase strength and range of motion, and return the applicant to his activities of normal living and employment. He says his physical pain is so bad that he required injections, and that his pain worsened when he stopped treatment because the respondent denied the OCF-18s in dispute. The applicant relies on the clinical notes and records of Dr. Sarwat Kamran (family physician) and the Centres for Pain Management, as well as two imaging tests of his left shoulder, an in-home occupational therapy assessment by Mr. Ali Habash (occupational therapist), a psychiatric assessment by Dr. Joan Quinn (psychiatrist), and psychological assessments by Dr. Challis and Dr. Silverman.
24The respondent’s submission argue that the applicant has obtained maximum therapeutic benefit from facility-based treatment, and that surveillance evidence shows the applicant is not suffering from any physical restrictions that interfere with his daily activities. The respondent relies on several physiatry IEs by Dr. Deborah Rabinovitch (physiatrist), and the surveillance reports of King Investigators.
25I am not persuaded by the opinions or findings of Drs. Challis, Silverman, or Quinn, all of whom are mental health professionals. I find these OCF-18s do not speak to psychological injuries or treatment, and concern only physical injuries and treatment that is outside the scope of practice for psychologists and psychiatrists. For example, the two OCF-18s completed by Ms. Sarika Jha (physiotherapist) propose physiotherapy to treat strain and sprain of joints in the applicant’s shoulder and pelvis, as well as whiplash and pain in the lower back and tailbone. The OCF-18 prepared by Dr. James Hadden (chiropractor) proposes chiropractic intervention and massage therapy to treat sprain and strain of the applicant’s lumbar spine, multiple superficial injuries to the applicant’s lower leg, shoulder and upper arm, and whiplash.
26In any event, I was not pointed to an opinion voiced by these mental health professionals on the reasonableness and necessity of these OCF-18s.
27In my view, the bulk of the medical evidence in this case establishes the applicant has full range of motion in the areas of his body affected by the accident, and is not suffering from any strength deficits. This is made out in Dr. Rabinovitch’s November 2020 IE. I prefer this evidence because Dr. Rabinovitch is a physical medicine and rehabilitation expert who conducted an in-person physical examination of the applicant’s neck, shoulders, lumbar spine, hips, knees (i.e., all the areas affected by the injuries listed at part 6 of the OCF-18s). Dr. Rabinovitch determined the applicant has a normal range of motion in all areas, along with normal muscle bulk, tone, and strength. I find this corroborates the results of the October 2019 ultrasound report and the June 2020 MRI follow-up that investigated the applicant’s left shoulder and found no definite tear. Dr. Rabinovitch concluded the applicant had obtained maximal therapeutic benefit from facility-based treatments, and had no musculoskeletal impairments that would cause a substantial inability to perform his pre-accident work duties. Dr. Rabinovitch performed a second in-person examination a year later in November 2021 that produced the same results and opinions.
28I disagree with the applicant’s position that Dr. Rabinovitch’s report should be given little weight because her failure to address the “interplay between his physical and psychological state is fatal to her opinions and reports, deeming them entirely not credible.” Dr. Rabinovitch is a physical medicine specialist and psychological opinions are outside the scope of her practice. Further, as earlier mentioned, the OCF-18s do not contemplate psychological injuries or treatment for such.
29Turning now to the pain reduction aspect of the OCF-18s at issue, I find the discharge report prepared by the Centres for Pain Management (dated May 24, 2022) shows the applicant is now on a stable medication regimen and that he feels the pain is adequately controlled.
30I am not persuaded by the March 2023 report of Mr. Habash because his finding that the applicant is presently unable to participate or fully engage in many of his previous activities due to persistent pain in multiple body regions is not supported by the contemporaneous surveillance conducted in February and March of 2023, and is inconsistent with the bulk of the other evidence I was pointed to. I did not find the applicant’s reply submission on the surveillance reports to be persuasive because the applicant did not point me to evidence that supported his observations.
31In fact, the evidence of Dr. Rabinovitch and the Centres for Pain Management, when taken together with the surveillance reports of October 2020, July 2021, and February-March 2023—which show the applicant walking unaided, driving, grocery shopping and loading, lifting his children, scraping ice and snow off his vehicle, ice skating, and playing ice hockey with his children—persuades me, on a balance of probabilities, that the goals of these OCF-18s (i.e., to increase range of motion, increase strength, and reduce pain) are not reasonable.
32I further find the applicant had returned to his activities of daily living, obtained maximal therapeutic benefit from facility-based treatments, and had no musculoskeletal impairments that would cause a substantial inability to perform his pre-accident work duties. As such, the OCF-18s are not reasonable and necessary.
The OCF-6 for massage and chiropractic services
33I find the applicant has not demonstrated the respondent is liable to pay these expenses.
34Section 38(2) of the Schedule establishes that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit, or an assessment or examination, if that expense is incurred before the insured person submits an OCF-18 unless: (i) the insurer pre-approves the expense, (ii) the expense is emergency-related (i.e., ambulance), (iii) the expense relates to prescribed drugs or certain goods that cost less than $250 each, or (iv) the insurer agrees the expense is essential and costs less than $250 per item or service.
35The OCF-6 in evidence documents a total of $5,606.76 in expenses, of which the respondent approved partial payment of $2,512.86. The denied portion pertains to $2,258.90 in moving expenses that the respondent indicated is not a payable expense under section 15 of the Schedule, and $835.28 in massage therapy that the respondent indicated was earlier denied on the disputed OCF-18 proposed by Clarington Chiropractic.
36I find the applicant does not make submissions pertaining to this OCF-6. The onus to meet the requirements set out in section 38(2) of the Schedule is solely on the applicant. As I have not been pointed to evidence that substantiates these expenses in that context, I cannot find the applicant has shown the respondent is liable to pay them.
Interest
37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. I find interest applies on the three OCF-18s for psychological services submitted in December 2019, July 2020, and January 2021.
ORDER
38The respondent shall pay the applicant $448.83 plus interest for each of the three OCF-18s for psychological treatment submitted in December 2019, July 2020, and January 2021. The applicant is not entitled to any of the remaining OCF-18s in dispute, nor the OCF-6.
Released: February 14, 2024
__________________________
Michael Beauchesne
Adjudicator